Ngombeini & 3 others v Gachiani [2023] KEHC 24824 (KLR)

Ngombeini & 3 others v Gachiani (Civil Appeal 78 of 2022) [2023] KEHC 24824 (KLR) (3 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24824 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Civil Appeal 78 of 2022

LM Njuguna, J

November 3, 2023

N THE MATTER OF THE ESTATE OF MWANIKI KIBARA (DECEASED)

Between

John Karimi Ngombeini

1st Appellant

Joseph Karuri Mwaniki

2nd Appellant

Josphat Muriuki Njoka

3rd Appellant

James Nyamu Mwaniki

4th Appellant

and

Richard Wachira Gachiani

Respondent

(Appeal from the Judgment of Hon. E.O. Wambo PM delivered in Chief Magistrate’s Court at Kerugoya Succession Cause No. 11 of 2018 on 26th August 2018)

Judgment

1. By a memorandum of appeal dated 1st September 2022, the appellants are seeking orders that the appeal be allowed with costs and that the judgment of the lower court be set aside and substituted by an order dismissing the summons for revocation of grant dated 27th June 2019. Grounds of the appeal are set out on the face of the memorandum being, inter alia, that, the learned magistrate erred in law and fact by:a.Making a finding against the evidence, which evidence was inconsistent and did not meet the standard of proof;b.Failing to find that the respondent lacked locus standi to represent Wamarwa Mwaniki who died in 1966;c.Failing to find that the application to consider the respondent as a dependant should not have been entertained under section 30 of the Law of Succession Act;d.Failing to consider evidence regarding the occupation and development of property no. Inoi/Ndimi/433;e.Making orders in faovur of persons that were not parties and had no locus standi in the case;f.Failing to find that the requirements of section 76 of the Law of Succession Act were not met; andg.Failing to deliver judgment timeously as the law required.

2. The facts of the matter are that a grant of letters of administration was issued on 18th June 2018 to John Karimi Ngombeini in the estate of the deceased. A certificate of confirmation of grant was subsequently issued on 20th December 2018. That vide summons dated 27th June 2019, the respondent sought revocation of the said grant on the grounds that the same had been obtained by making a false statement or concealment from the court of a material fact. He also sought to be included in the distribution of the estate. In the supporting affidavit to this application, he stated that he was a grandchild of the deceased and was under his care until the time of his death. He produced copies of school records to show that the deceased was his guardian. That he had capacity to bring the application as administrator of the estate of his late mother who was the daughter of the deceased, and for this, he produced a copy of the relevant grant ad litem.

3. The application was contested by the appellants herein who stated that the respondent was a stranger to the estate because he was born to their sister out of wedlock. They also disputed the school records produced because the record was not endorsed by the school. That their sister got married to Gachiani Gikunju and that the respondent herein inherited from estate of the said Gachiani Gikunju. They averred that they have made substantial developments on the estate bequeathed upon them and it would be a loss if the grant was revoked.

4. The respondent filed a reply to the replying affidavit, reiterating the facts deposed in his affidavit in support of the summons for revocation of grant. He added that his mother, the daughter of the deceased had 3 children who ought to be included in the inheritance.

5. The trial court took viva voce evidence. PW1 was the respondent herein who adopted his affidavit as evidence-in-chief and on cross-examination he stated that he has two siblings. That when his mother died, his father gave him land. That he does not know his biological father but he knows the one who raised him. PW2 stated that he did not know much about the family but he knows that the respondent was denied by his uncles in 1997 and then he went away.

6. DW1 was the 1st appellant herein who stated that the deceased was living in his home before he died. That the deceased had left him property numbers Inoi/Ndimi/429. That the 2nd appellant had Inoi/Ndimi/430, the 3rd appellant had Inoi/Ndimi/431 and the 4th appellant had Inoi/Ndimi/432. That all the appellants had a share in Inoi/Ndimi/433 and had developed and invested in it. DW2 who is the 2nd appellant herein stated that land title number Inoi/Ndimi/433 was retained by their father and was being used by all the four appellants to plant coffee although they do not have the titles. That when the deceased’s mud house was destroyed, he was staying in the house of the 1st appellant. That when the respondent was born, he stayed with the appellants’ mother while the deceased was in detention by the colonial government and by the time he was released, the respondent was a few months old. That the respondent’s mother later had a daughter.

7. DW3 was the 3rd appellant and he associated himself with the evidence of the 1st appellant. He stated that the respondent is the son of his deceased sister and that he (the respondent) used to take care of the deceased before he died. That the deceased was living in the house of the 1st appellant on property number Inoi/Ndimi/433. DW4 was the 4th appellant herein who associated himself with the evidence adduced by the 1st appellant. That property number Inoi/Ndimi/433 was in the name of the deceased. That he does not know whether the photographs produced were for the property Inoi/Ndimi/433. That he was too young when his sister died.

8. DW5 was a friend of the family and he stated that the deceased had subdivided his land but had not given it officially to the appellants. That he visited the deceased frequently but he did not always see the respondent at the home. That at the time of his death, the deceased was living with one of his sons who was taking care of him as he had no house. That he saw the respondent’s mother only once because she had been married elsewhere. That the respondent was born where his mother was married. DW6 knew the deceased and his family and he stated that the respondent was indeed a son of the daughter of the deceased. That the father of the respondent was called Gachiani and that he did not live with the deceased.

9. Based on the evidence, the trial court did not revoke the grant but instead, apportioned property in title number Inoi/Ndimi/433 to the estate of the deceased beneficiary through her children the respondent and 2 others. A certificate of confirmation of grant was issued on 26th August 2022.

10. In this appeal, the parties filed submissions as directed by the court.

11. The appellants submitted that the respondent’s mother did not survive the deceased and therefore had no right to inherit from the estate of the deceased. That the grant was revoked for the reason that not all the children of the deceased were included in the proceedings. It was their submission that the respondent therefore lacked locus to represent the estate of his deceased mother as she could not have inherited from the estate of the deceased post-humously. That the respondent’s personal claim in the estate as a grandchild is time barred per the limitation set out under section 30 of the Law of Succession Act. That even if he was able to inherit, there is no sufficient proof that he was a dependent of the deceased. He relied on the case of Re-Estate of M’Thigai Muchangi (deceased) (2000) eKLR and the meaning of a dependent under section 29 of the Law of Succession Act. That the respondent did not challenge the grant when it was issued and that the court ought to have dismissed the summons for revocation of grant.

12. The respondent submitted that he had locus to plead in this matter because he had been issued with grant ad litem in the estate of his mother who was meant to be a beneficiary of the estate of the deceased. That he had not renounced his interest in the estate under Rule 18 of the Probate and Administration rules and was able to claim such interest under Section 42 of the Law of Succession Act. He submitted that his mother had a right to inherit post-humously because of the definition of “child” per Section 3(1) of the Law of Succession Act. He relied on the cases of Re Estate of Muthoni Kinyua (deceased) (2018) eKLR and Eddah Wangu & another Vs Sacilia Magwi Kivuti (Deceased) Substituted with Ribereta Ngai (2021) eKLR to make his case.

13. From perusal of the trial court’s record and the memorandum of appeal, the only issue for determination is whether or not the trial court was right in revoking the grant issued on 18th June 2018. Once this issue is determined, the rest, if any, will stand resolved.

14. To begin with, I do note that there is myriad of arguments on purely extraneous issues by parties starting from the trial court and now in this appeal. The subject of this appeal is summons for revocation of grant dated 27th June 2019. In this summons, there were 3 orders sought:a.Revocation of grant;b.Redistribution of the estate; andc.Costs.

15. The trial court determined the first issue as shown at page 147 lines 1-3. In other words, the magistrate gave reasons for revoking the grant and stated “…I shall allow prayer 1 of the summons dated 27th June 2019”. However, the court proceeded to distribute the estate in such a way that the respondent and his siblings are included in the estate. In my view, this is a complete nullity. I shall explain.

16. A party can apply for revocation of a grant but cannot at the same time seek to be included in the distribution of the estate. The latter means interfering with the certificate of confirmation of grant, which cannot be revoked but rather set aside. If a court should grant the prayer to revoke a grant, automatically, the resulting certificate of confirmation of the same stand revoked and cannot be executed. In my view, once the court granted prayer 1, it was futile to redistribute the estate and even issue another certificate of confirmation. Further, the applicant did not pray for setting aside of the certificate of confirmation of grant. In the case of In re Estate of Prisca Ong’ayo Nande (Deceased) [2020] eKLR the court stated:“I have very closely perused through the provisions of the Law of Succession Act, and I have not come across any provision that provides a remedy to a person who is aggrieved by confirmation orders. Sections 71, 72 and 73 of the Law of Succession Act, which deal with confirmation of grants, do not address the question of redress for parties who are unhappy with the confirmation process, nor do they deal generally with flaws in the confirmation process. As stated above, section 76 has nothing to do with the confirmation process, and provides no relief at all to any person unhappy with the confirmation process. In the absence of any provision in the Law of Succession Act, for relief or redress for persons aggrieved by such orders, the aggrieved parties have only two recourses under general civil law, that is to say appeal and review, to the extent that the same is permissible under the Law of Succession Act. I would believe that one can also apply for the setting aside or vacating of confirmation orders, where the same are obtained through abuse of procedure.”

17. This is to say that nothing stops the respondent from claiming part of the estate of his grandfather since his mother is dead. In the case of Cleopa Amutala Namayi Vs Judith Were Succession Cause 457 of 2005 [2015] eKLR the court observed that:“Be that as it may, under Part V of the Act grandchildren have no automatic right to inherit their grandparents …. The argument behind this position is that such grandchildren should inherit from their own parents. This means that the grandchildren can only inherit their grandparents indirectly through their own parents…. The children to the grandparents inherit first and thereafter the grandchildren inherit from their parents. The only time where the grandchildren can inherit directly from their grandparents is when the grandchildren’s own parents are dead…”

18. The Act provides for situations where children predeceased their parents under Section 41 which provides:“Where reference is made in this Act to the "net intestate estate", or the residue thereof, devolving upon a child or children, the property comprised therein shall be held in trust, in equal shares in the case of more than one child, for all or any of the children of the intestate who attain the age of eighteen years or who being female, marry under that age, and for all or any of the issue of any child of the intestate who predecease him and who attain that age or so marry, in which case the issue shall take through degrees, in equal shares, the share which their parent would have taken had he not predeceased the intestate.”

19. For this reason, I shall base my determination only on the revocation of grant. From perusal of the judgment of the trial court, I do agree with the reasoning leading to revocation of the grant. From the onset, the children of the deceased’s sister should have been included in the succession. Without regard to the foregoing, a grant was issued, confirmed and then revoked by the same court. The basis for revocation of grant is laid out under Section 76 of the Law of Succession Act as follows:“A grant of representation, whether or not confirmed, may at any time be revoked- or annulled if the court decides, either on application by any interested party or of its own motion-a.that the proceedings to obtain the grant were defective in substance;b.that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;(c)that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;(d)………”

20. All the appellants knew and even testified that they had a sister who died in the year 1966 and that she had children who include the respondent. However, they went ahead to file for succession, not disclosing this fact to the court. This is sufficient ground for revocation of the grant. According to the section 76(b) of the Law of succession Act, there was indeed concealment from the court of something material to the case. If this fact had been disclosed at the point of filing of the petition for letters of administration, the court would have accommodated the respondent as grandchild of the deceased or as administrator of the estate of the deceased child of the deceased, or both.

21. In the upshot, therefore, I find that the appeal lacks merit and is hereby dismissed with orders as follows:i.The grant of letters of administration issued on 18th June 2018 is hereby revoked;ii.The certificates of confirmation of grant issued on 15th February 2019 and the one issued on 26th August 2022 are both hereby set aside;iii.A fresh petition for letters of administration be made and filed including the respondent and all his siblings as beneficiaries;iv.Each party to bear their own costs.

22. It is so ordered.

DELIVERED, DATED AND SIGNED AT KERUGOYA THIS 3RD DAY OF NOVEMBER, 2023. L. NJUGUNAJUDGE………………………………………………for the Appellants……………………………………………for the Respondent